Citation Nr: 1122199
Decision Date: 06/08/11 Archive Date: 06/20/11
DOCKET NO. 09-43 732 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUES
1. Entitlement to service connection for prostate cancer.
2. Entitlement to service connection for atrial fibrillation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The Veteran served on active duty from February 1953 to January 1955
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.
The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2011.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 20102).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.
Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id. The record before VA need only (1) contain evidence that the Veteran has persistent or recurrent symptoms of current disability and (2) indicate that those symptoms may be associated with the Veteran's active military service. Duenas v. Principi, 18 Vet. App. 512 (2004).
In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410, at 418 (2006).
In this case, VA has not afforded the Veteran a VA examination. However, the Veteran recently submitted letters from Clifford A. Browning, M.D., F.A.C.C., and Timothy Hopkins, M.D., which indicate a possible relationship between both atrial fibrillation and prostate cancer to service. The Board notes that medical evidence which merely indicates that the alleged disorder may or may not exist or may or may not be related, is too speculative to establish the presence of the claimed disorder or any such relationship. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). However, since this evidence suggests a possible etiological relationship between currently diagnosed disabilities and service, the Veteran should be afforded a VA examination for an opinion, if possible.
In addition, the Veteran contends that he was exposed to asbestos during service and the private examiner cited the claimed exposure in an opinion letter.
The VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities purportedly resulting from asbestos exposure. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h); see VAOPGCPREC 4-2000 (Apr. 13, 2000); 65 Fed. Reg. 33,422 (2000); see also Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993).
The service department and/or any other available source should be contacted to determine, based on its personnel records, if the Veteran worked in areas and performed duties in accordance with his military occupational specialty where he would have been exposed to asbestos. The VA examiner(s) should provide an opinion if currently diagnosed disabilities are attributable to asbestos exposure during service, if shown.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.)
1. A VCAA letter addressing claimed asbestos exposure should be sent to the Veteran.
2. Contact the service department and/or any other available source to determine if the Veteran worked in areas and performed duties in accordance with his military occupational specialty where he would have been exposed to asbestos. A complete copy of the Veteran's service personnel records should be obtained.
3. Thereafter, schedule the Veteran for an appropriate VA examination(s) for prostate cancer and atrial fibrillation. Any indicated tests should be accomplished. The examiner(s) should review the claims folder in conjunction with the examination(s).
The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not that prostate cancer had its clinical onset during service or is related to any in-service disease, event, or injury, including chemical and/or asbestos exposure. The examiner should consider and comment on the letter provided by Timothy Hopkins, M.D.
The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not that atrial fibrillation had its clinical onset during service or is related to any in-service disease, event, or injury, including chemical and/or asbestos exposure. The examiner should consider and comment on the letter provided by Clifford A. Browning, M.D., F.A.C.C.
The examiner(s) should provide a complete rationale for all opinions expressed and conclusions reached.
4. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry.
5. Finally, readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010).
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P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2010), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).